Melissakis (Migration)

Melissakis (Migration) [2021] AATA 982 (6 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Evangelos Melissakis
Ms Maria Chatzifilippou
Miss Charikleia Zoi Melissakis
CASE NUMBER:  1900325
HOME AFFAIRS REFERENCE(S):          BCC2018/781012
MEMBER:Phoebe Dunn
DATE:6 April 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 457 (Temporary Work (Skilled)) visas:
·Public Interest Criterion 4020 for the purposes of cl.457.224(1) of Schedule 2 to the Regulations.

Statement made on 06 April 2021 at 6:12pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – false or misleading information in visa application – criminal convictions – cheques signed while CEO of company later bounced – convictions recorded without applicant’s knowledge – found out when applying for second visa – advised by accountant that convictions became a civil matter after fines paid – selected ‘no’ to question about convictions but included information about them – acts or omissions of agent – no element of fraud or deception – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.224(1), Schedule 4, criterion 4020(1), (4), (5)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 December 2018 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 16 February 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.457.224(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant had given or caused to be given information that is false or misleading in a material particular on his Subclass 457 visa application, in breach of Public Interest Criteria (PIC) 4020(1), and there were no compassionate or compelling circumstances justifying a waiver of those requirements under PIC 4020(4).
The applicant appeared before the Tribunal on 12 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Farshad Khajenouri, the applicant’s employer, who appeared as a witness for the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.
The applicants were represented in relation to the review by their lawyer and registered migration agent, Ms Sousan Oboodi-Mehr.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.457.224(1) for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting three years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
At the hearing of this matter, the Tribunal spent some time outlining the matters for consideration before the Tribunal, being:
a.Did the applicant provide false and misleading information in a material particular on his Subclass 457 visa application, such that PIC 4020(1) was engaged, leading to a finding that the applicant did not meet the requirements for the grant of a visa in cl.457.224(1); and
b.If yes, should the Tribunal exercise its discretion to waive the requirements of PIC 4020(1) on the basis of PIC 4020(4) that there are circumstances that would justify the grant of the visa on either of the following grounds:
i.Compelling circumstances that affect the interests of Australia; or
ii.Compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The Tribunal explained that PIC 4020(1) requires that there be no evidence of any false or misleading information that had been given by the applicant in respect of his visa application and that this was a low threshold, provided it had sufficient probative value. Conversely, the Tribunal explained that in order to waive the requirements of PIC 4020(1), the Tribunal needed to be satisfied that the circumstances were so compelling under PIC 4020(4)(a) or so compassionate or compelling under PIC 4020(4)(b) so as to justify the granting of the visa, setting a high bar.
At the hearing, the Tribunal explored the applicant’s visa history and the circumstances that gave rise to the convictions. The applicant stated that he first applied for a Subclass 457 visa in 2013 at which stage there were no convictions recorded against him. He stated that the convictions were subsequently recorded in Greece sometime in 2014 without his knowledge. He stated that he only found out about the convictions when he applied for his second Subclass 457 visa and was requested to obtain the police clearance. Once he discovered the convictions he called his accountant in Greece who advised that it had all been paid and not to worry about it.
The applicant stated that he was the joint CEO of a label and packaging company in Greece and held shares in that company. He stated that when the Greek financial crisis hit, business was still good, but there were a lot of customers who had failed to pay their invoices and it was a stressful time. The applicant stated that he was responsible for writing the cheques to pay for the materials they were using. He stated that unlike Australia, which requires payment upfront or payment on delivery, in Greece cheques were signed but not filled until after a year. He stated that he resigned as a Director and CEO in December 2009 and that he had signed the cheques a few months before he did so. He stated that it appeared that the cheques had ‘bounced’ approximately 18 months later. He stated that he was not aware of this and that at this stage he was running a business in Bulgaria. He stated that he left Greece on 2 February 2012 and came to Australia.
The applicant stated that when he first came to Australia he studied English and worked part-time. He stated that he applied for his first Subclass 457 visa in early 2014 and at that time he was not aware of the convictions and was not required to obtain the police certificate. He stated that it was only when he applied for renewal that he was required to produce the certificate and discovered the convictions. He stated that his accountant advised him that everything was settled, and because the justice system works differently in Greece he was not aware that he should then have changed his application to advise about the convictions. He stated that his migration agent tried to explain to the Department that these were not significant convictions and had all been dealt with and were not of the nature that would require disclosure on the Subclass 457 visa application. He stated that he tried to explain the differences between the system in Greece and Australia in that regard.
The applicant stated that once he became aware of the convictions he included information about the convictions on his Form 80 (dated 6 November 2018), but still selected ‘no’ to the question about convictions. He stated that he believed the convictions on his record were not of the nature of convictions required to be disclosed on the form and that he had provided an explanation about the convictions on the form. He reiterated that in Greece, the system was different and he didn’t understand that he still needed to select ‘yes’ to this question. He stated that his agent filled out the form on his behalf.
At the hearing, the Tribunal put to the applicant that once he was aware of the convictions on his criminal record it was no longer possible to say that he did not have a criminal record. The Tribunal also noted that the question on the form was not limited to criminal convictions, but any conviction, whether or not it had been expunged from the record. The applicant agreed that this was the case and stated that he was not aware that the agent was only going to provide an explanation rather than selecting ‘yes’. He reiterated that all this happened because he ‘didn’t understand’. The Tribunal explained that it was not a question of the severity of the convictions, rather that any conviction needed to be disclosed. The applicant stated that he understood that now and that aside from this issue he had an unblemished record.
At the hearing, the Tribunal explored with the applicant the waiver requirements set out in PIC 4020(4). In this context, the applicant gave evidence regarding the dearth of printers with his skills in Australia. He stated that he had worked for the same company for eight years and that his job was very specialised, requiring very specialised and technical skills. He stated that he regularly received offers of employment from businesses seeking his skills as they are so difficult to find but had declined those offers out of loyalty to his sponsor. He stated that the had friends and family in Australia who would all be impacted if the decision was upheld.
Evidence of Mr Farshad Khajenouri
At the hearing, Mr Khajenouri appeared as a witness for the applicant, representing the nominating business. Mr Khajenouri gave detailed evidence consistent with that of the applicant about the challenges with finding suitably qualified and experienced printers. He stated it is ‘absolutely impossible’ to find an experienced printer in Australia and that he disagreed with the categorisation of the delegate in the decision record on this issue. He stated that there is no longer any training provider in Australia providing training on these specialised skills and that all training now occurs through apprenticeships.
Mr Khajenouri stated that it is also extremely difficult to attract apprentices as no one wants to do this type of work. He stated that he places advertisements regularly each year with very little success locally. He stated that in 2019 he placed 10 advertisements, a few in 2020 and then one in 2021. He stated that the last two printers he has hired have come from overseas (New Zealand) or interstate (NSW). He stated that he works with local schools and careers counsellors in an attempt to secure interest from school leavers to no avail. He stated that it is becoming an ‘old trade’ and the younger generation is not interested in acquiring these skills. He described it as a ‘rare’ trade that is extremely difficult to find. He stated that this was the reason he had turned to using the Subclass 457 visa scheme to help fill a significant skills shortage in the Australian market.
Mr Khajenouri described the specific skillset of the applicant, noting that the machine operated by the applicant is very complex and that the applicant is the only person currently employed by the business who is able to operate this machine. He described the applicant as a ‘fine gentleman’ and a family man, who does a good job and that he was willing to do anything to provide support and help the applicant win his case. He described the impact on his business as substantial if he were to lose the applicant, stating that he would need to stop one of his production lines altogether, and that this would result in a backlog in another production line and he would have to require other employees to work overtime, which would have occupational health and safety implications. He observed that the process of sponsoring employees was time consuming and costly. He reiterated that if he could employ a local he would, but that it is ‘impossible’ to do so.
At the hearing, the Tribunal reiterated that the questions before it were first, whether the applicant had given or caused to be given information that was false or misleading in a material particular in relation to his Subclass 457 visa, invoking PIC 4020(1) and if that question was answered in the affirmative, second whether the circumstances were such that the Tribunal should exercise its discretion to waive the requirements in PIC 4020(1) in accordance with PIC 4020(4).
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
The delegate found that PIC 4020(1) was engaged in the present case in connection with the applicant’s Subclass 457 visa application on the basis that the applicant provided false and misleading information in a material particular by declaring ‘no’ in response to the question on his application form about whether he had any convictions, despite being aware of the convictions. As such the delegate found that the declaration was false at the time it was given which was relevant to the consideration of the character requirements in PIC 4001. The delegate was not satisfied that the applicant was unaware of the convictions or that the applicant believed the convictions were not required to be disclosed.
The applicant has made written submissions to the Tribunal addressing this requirement and this was explored in detail at the hearing. In the applicant’s written submission dated 3 March 2021, the applicant contends, in essence, that he was not aware of the convictions at the time he applied for the second Subclass 457 visa and as such he did not knowingly provide false information in a material particular, being that he stated that he had not been convicted of any offences on his Subclass 457 visa application, whereas, in fact, he had. The applicant argues that while the information was incorrect at the time it was given, it was not purposely untrue, and there was not the requisite element of deception, such that PIC 4020(1) was not engaged.
The applicant’s second contention is that the convictions listed on his Greek Penal Clearance were not of the nature of criminal offences, rather they were fines and penalties that once paid had ‘no criminal consequences’. In written and oral submissions, the applicant has stated that the offences arose as a consequence of cheques he wrote while a Managing Director of a company in Greece, that ‘bounced’ some years later, after he had left Australia, and that the fines associated with those offences were paid by his accountant in Greece and that once paid, the offences becomes a civil issue not a criminal matter.
In relation to the second contention, the Tribunal notes that the applicant’s claim that the system for recording criminal convictions of this nature in Greece is different from Australia and that such convictions convert to civil matters once the associated fines are paid would require the Tribunal to look behind the decision of a court of another jurisdiction, which is beyond the remit of this Tribunal. The Tribunal also notes that the terms of this question are clear, being that the visa applicant is required to disclose any conviction, without limiting those to criminal convictions and regardless of whether such convictions are subsequently expunged from the record. This question applies regardless of the severity or triviality of the circumstances that led to the convictions.
The Tribunal has carefully considered the information before it and the applicant’s submissions and is persuaded that the applicant was not aware of the convictions at the time he applied for the Subclass 457 visa (16 February 2018). Accordingly, the Tribunal finds that at the time the applicant applied for his Subclass 457 visa application and declared that he did not have any convictions on his application form, he was not aware of the convictions such that, while the information was incorrect at the time it was given, it was not purposely untrue, and there was not the requisite element of deception, such that PIC 4020(1) was not engaged at this time.
Once the applicant became aware of the convictions, the question then becomes whether his failure to declare these convictions on the Form 80 by selecting ‘yes’ in response to the question about whether the applicant or any other person included in the application had ever ‘been convicted of an offence in any country (including any conviction which is now removed from the records’ constituted false and misleading information in a material particular for the purposes of this provision. Information before the Tribunal shows that the Greek Penal Certificate listing the convictions was issued on 11 July 2018 and provided to the Department on 5 August 2018. The Tribunal considers it was open to the applicant at this time to provide an updated Form 80, responding in the affirmative to the declaration about the convictions and providing accompanying information by way of explanation.

The Tribunal accepts that the applicant provided an updated Form 80 (dated 6 November 2018), which makes reference to the convictions and provides such an explanation. However, the Tribunal also notes that the applicant continued to select ‘no’ to the question on that form declaring that he had no convictions. The Tribunal does not consider this to be an inadvertent error as the explanation offered on that form was that these convictions were of such a nature that the applicant was not required to disclose them. In oral evidence at the hearing, the applicant has conceded that he should have selected ‘yes’ in response to the question regarding convictions. Instead the following statement was made:
We have noted no to any conviction. Although the penal clearance shows suspended sentences, the issues raised within the penal clearance are of a civil matter and not a criminal matter. However, under Greek Law, such matters are raised as criminal as they seek for payment to be made and once this payment is made, the issue is deemed finalised but showing as suspended. We suggest that if there is any confusion, that the Department speaks with the offshore accountant….who can clarify this matter.
The applicant stated that his migration agent filled in the forms on his behalf and that he did not understand that he had to disclose any conviction irrespective of whether or not it was a criminal conviction. In assessing this claim, the Tribunal has had regard to the general principles of agency in Australian law. In these circumstances, the agency relationship was established when the applicant engaged the agent to assist the applicant to obtain a Subclass 457 visa. In the context of migration law, the Courts have held that the acts or omissions of an agent, who the applicant has engaged to do certain things on their behalf, are taken to be the actions of the applicant. The principles of agency established by the relationship between the applicant and his migration agent are such that, notwithstanding that the agent completed the forms for the applicant, the applicant is taken to have directed the agent to complete the forms in the manner in which they were completed, irrespective of any errors, unless it can be established that the actions of the agent were beyond the control of the applicant. Accordingly, the Tribunal has considered whether the evidence indicates that the agent was acting without authority and outside the agency relationship, such that that the actions of the agent were beyond the control of the applicant and the applicant could not have been said to have been willfully blind to the agent’s actions.
In this case, evidence before the Tribunal indicates that the applicant had given the agent broad authority to lodge the applications on his behalf. When the Greek Penal Certificate was obtained, the applicant contacted his accountant in Greece and provided information to his migration agent to assist the agent to complete the forms and provide the Department with an explanation and context for the convictions. It is the applicant’s responsibility to ensure the information is truthful and correct, irrespective of whether there is an agent involved. Accordingly, the Tribunal does not consider this to be a circumstance where the agency principles do not apply.
However, the Tribunal has turned its mind to whether, on the facts of this case, PIC 4020(1) has been engaged in circumstances where the applicant openly provided the Department with information regarding the convictions without any apparent attempt to hide or falsify that information and the failure to select ‘yes’ in response to this question was a conscious act as opposed to an inadvertent error, on the basis of a misapprehension about the nature of the information required to be disclosed in this context. There is no doubt that when the applicant declared that he had no convictions on his Form 80, this was false, or incorrect, information. Notwithstanding this, at that time the applicant provided an explanation regarding the convictions with his application together with a copy of the Greek Penal Certificate and did not attempt to hide this information. The question then becomes whether the provision of this false information in these circumstances had the necessary element of fraud or deception to meet the test in PIC 4020(1).
Having carefully considered the evidence before it, the Tribunal does not consider the actions of the applicant to have had the requisite element of fraud or deception. The applicant disclosed his criminal convictions and provided particulars and an explanation of the circumstances that led to those convictions. The Tribunal accepts that the applicant did not intend to mislead or deceive the Department when selecting ‘no’ in response to the declaration regarding convictions. The Tribunal accepts that the applicant incorrectly believed this question to be limited to criminal convictions of a different nature and that his convictions did not fit that description. The Tribunal is persuaded that there was no intention by act of omission to commit fraud or deception through the provision of information that on its face was not correct. The Tribunal accepts that the applicant provided the Greek Penal Certificate and an explanation about the nature and the context in which the convictions were incurred and did not try to hide any of this information. On this basis, despite being mistaken about the nature of the declaration regarding convictions, which requires that all convictions be disclosed irrespective of their nature and currency, the Tribunal is persuaded by the applicant’s evidence that his failure to select ‘yes’ at the time he became aware of the convictions was not done with any intent to deceive, noting in particular that the applicant provided details of his convictions and an explanation of the circumstances leading to the convictions and did not try to hide them. Accordingly, the Tribunal does not consider that the applicant’s actions had the necessary element of fraud or deception required to attract PIC 4020(1).[1]
[1] Trivedi v MIBP [2014] FCAFC 42
Therefore, the applicant meets PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing three years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).
There is no evidence before the Tribunal that the applicant or a member of the family unit of the applicant has been refused a visa in the three years before the application was made because of a failure to satisfy PIC 4020(1).
Therefore, PIC 4020(2) is met.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
There is nothing to suggest the applicant’s identity is at issue. The Tribunal has considered documentation on the Departmental file, including a copy of the applicant’s passport, and is satisfied as to the applicant’s identity.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no evidence before the Tribunal to suggest that any past visa application made by the applicant or a member of the family unit of the applicant was rejected on the basis of PIC 4020(2A).
Therefore PIC 4020(2B) is met.
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.457.224(1).
DECISION
The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 457 (Temporary Work (Skilled)) visas:
·Public Interest Criterion 4020 for the purposes of cl.457.224(1) of Schedule 2 to the Regulations.
Phoebe Dunn
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s 5 Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
…

[2021] AATA 982

6 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction